Lawyer in Tenenbaum music piracy case to seek retrial

The Harvard Law School professor who defended a Boston University doctoral student in a music piracy case plans to seek a new trial. A hearing on the motions is scheduled for Jan. 4. Nesson plans to argue that Tenenbaum's file-sharing activities occurred before digital music could be purchased legally in MP3 format. Charles Nesson, a law professor and the founder of Harvard's Berkman Center for Internet and Society, said he is also filing a separate motion challenging the constitutionality of the $675,000 fine assessed against Joel Tenenbaum and asking that it be reduced to a more reasonable amount. He pointed to remarks made by U.S. District Court Judge Nancy Gertner in her decision yesterday that he said supported such an argument.

In her remarks, Gertner noted that individuals "who used new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets," might be able to use a fair-use defense. Gertner signed off on a $675,000 fine against Tenenbaum, who was found liable for illegally downloading and sharing 30 copyrighted songs in a lawsuit brought by the Recording Industry Association of America (RIAA), which represents the major music labels. In her decision, Gertner wrote that the court might have been willing to hear the "fair use" defense asserted by Nesson had it been presented in a proper manner. If Nesson had tailored his defense to suggest a "modest exemption" to copyright protections, the court would have been willing to entertain the defense, Gertner noted. Gertner said she had to forbid Nesson from presenting a fair-use defense in the case because the manner in which it was presented to the court was too broad and vague.

As an example of such an exemption, Gertner wrote that individuals who had used new file-sharing networks in the "technological interregnum" before legal paid music downloads were available might be able to rely on a fair-use defense, if they had later started paying for such downloads. The key question is, when did that period come to an end?" he said. The fair use doctrine allows for the use of copyrighted material without permission from the rights holders in certain limited circumstances. "Her opinion on their being an interregnum between when Napster came online and the time the industry finally responded," with legal MP3 music downloads is interesting, Nesson said in an interview with Computerworld . The comments suggest that Gertner recognizes many Napster users might have had a legitimate fair use, Nesson said. "She has established the foundation by recognizing this interregnum period. Nesson said he will also use Gertner's refusal to permit the fair-use defense in the case and other "major evidentiary errors" as a basis for seeking a new trial. Her refusal resulted in the jury walking away with a false impression of Tenenbaum's commitment to settling the case, Nesson claimed.

One example of such an error was the judge's refusal to allow the jury to see the entire contents of a letter Tenenbaum had written to the RIAA offering them $500 by way of a settlement, Nesson said. Nesson said he will also argue that the copyright statutes used in the case were not meant to be used against individuals, but against commercial enterprises that break copyright laws. "We will be asserting the unconstitutionality of applying these bankrupting damages to individual persons like Joel," Nesson said. Nesson's tactics in the case have previously drawn fire from other legal experts. How successful such arguments are likely to be remains to be seen. Some had predicted that his assertion of a fair-use defense would fail, well before Gertner threw it out.

Gertner, in her decision yesterday, criticized Nesson's behavior and called his use of the fair-use defense an "afterthought" that he came up with "literally on the eve of trial." "Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal," Gertner wrote in explaining some of the reasoning behind her decision to forbid the fair use defense in the Tenenbaum case. Others questioned his decision to challenge the constitutionality of the statutes under which Tenenbaum was sued. Nesson, however, brushed aside the judge's criticism and maintained that it was she who had gotten it wrong. "I was sorry she did not respond to our fair use defense. Gertner in her decision also said she was concerned with "astronomical penalties" available to music companies under copyright laws, She called upon Congress to amend copyright statutes to reflect the realities of file-sharing among students. She had a considerable amount of trouble rejecting it," he said.

Dell-Perot deal: Big price tag, small industry impact

Dell's bid for outsourcer Perot Systems marks a significant move for the hardware vendor, but industry watchers say the pending acquisition won't do much to alter the current IT services market. The deal marks a very deliberate strategy from Dell to add IT services expertise to its mostly products business, industry watchers say. "Dell has been a bit more gradual embarking on its services strategy, but it has been very deliberate in determining who is the right player at the right time," says Dane Anderson, research vice president at Gartner. "Perot offers something that can be complementary to the Dell business and at the same time, it is very digestible and integrate-able." Slideshow: Recapping the hottest tech M&A deals of 2009 Perot, which is already a Dell partner and delivered a healthcare solution based on a Dell platform earlier this year, does business just shy of $3 billion, according to Anderson. Dell buying Perot Systems for $3.9 billion Dell Monday announced it would pay $3.9 billion to acquire existing partner and IT services provider Perot Systems.

A deal would enable Dell to sell products into Perot accounts and vice versa. For one, Dell needs to maintain its foothold in the small and midsize enterprise market and not yet attempt to become an "anywhere, anytime global services provider," Anderson says. "This deal increases Dell's footprint, but it doesn't give them a license to play anywhere. If the two companies can stay focused, analysts say, the opportunity for a successful integration is large. They have to be selective and disciplined about the markets the combined company addresses." That means Dell could excel in vertical markets such as healthcare and government, considering Perot's strong history in both areas. The acquisition will impact Dell and Perot and their customers, and it is interesting, but it's not game-changing for the industry." Others say the deal represents an aggressive move on Dell's part that impacts both the hardware and IT services market, and vendors such as HP and IBM specifically.  HP and IBM have long been able to couple their product offerings with professional services, and HP recently upped the ante by acquiring EDS. Dell being a pure-play hardware vendor with partnerships in software and services wasn't able to effectively compete with the market-leading services vendors. Industry watchers say with proper execution the acquisition could be the beginning of Dell expanding beyond being a product maker to becoming a provider of IT services, which would benefit both companies involved in the pending deal. "Perot Systems is a conglomerate of goods and services outside the scope of IT. This acquisition is a first step in Dell's long-held desire to provide more than just desktop solutions," says Steve Brasen, principal analyst with Enterprise Management Associates. "Leveraging Perot's broad market base, however, Dell will likely find direct marketing opportunities to expand its core IT business – particularly among government, financial and healthcare institutions." Dell is planning to keep the leadership team at Perot in place, which could bode well for the success of the acquisition, says Mark Mayo, partner and president of global resources management at TPI. But aside from the deal representing a trend toward consolidation in the IT services market, Mayo doesn't see the final acquisition as having a big impact on the competition or the market in general. "We expect to see more consolidation because it is a very competitive market and a surge of new players came into the market globally in the late 1990s and early 2000s," Mayo explains. "But this is not an industry-leading or industry-making event.

Now with Perot's services business, Dell is on track to better compete with the likes of Accenture, CSC, HP and IBM, analysts say. "Perot and Dell together are able to compete with HP and IBM, specifically, in ways that neither was able to before. Dell was on a losing path as a pure-play hardware vendor," says Andi Mann, vice president of research at Enterprise Management Associates. HP and IBM (and to a lesser extent Sun) have been able to offer a complete data center infrastructure - from facilities, through server and storage hardware, to software, and implementation and operational services – for some time. Acquiring an IT services arm will help Dell better compete and expand into new markets, but it won't be enough to enable it to fully compete head-on with the likes of HP and IBM, Mann adds. "If Dell really wants to compete on even footing with HP and IBM, it is going to need a software stack of its own. Do you Tweet? It can continue to cede solution revenues to its partners for some time, and this buy will cause significant indigestion and inertia that will hold up any new acquisition, but eventually Dell must pick up a software stack," Mann says.

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GlobalFoundries woos customers with expansion plans

The acquisition of Chartered Semiconductor by Advanced Technology Investment Co. (ATIC) and its planned integration with GlobalFoundries will help the contract chip maker win more customers, GlobalFoundries CEO Doug Grose said Wednesday. "This enhances our ability to then service a much broader and deeper range of customers" Grose said during a presentation at Advanced Micro Devices' 2009 Analyst Day. The company is a joint venture between AMD and ATIC and the microprocessor vendor remains its biggest customer. GlobalFoundries, formerly the manufacturing arm of AMD, was spun off as an independent company and began operating on its own earlier this year. In September, ATIC offered to acquire Singapore's Chartered Semiconductor, which uses the same manufacturing process technology as GlobalFoundries.

Besides adding manufacturing capacity through ATIC's acquisition of Chartered and the construction of a new plant in New York, GlobalFoundries is counting on advanced process technologies to help it win customers and compete with rivals like Taiwan Semiconductor Manufacturing Co. Nearly all of GlobalFoundries' current production uses its 45-nanometer process, reflecting AMD's role as the company's dominant customer, Grose said, adding that the more advanced 32 nanometer process is in pilot production and is "ready to go" next year. Chartered shareholders voted to approve the deal earlier this month. "We have one more regulatory approval to get in the world and we're working towards year end to close this ... and to do the planning to integrate, on an operational basis, Chartered and Global Foundries into a single face to the customer," Grose said. GlobalFoundries has also started pilot production using its 28-nanometer process technology, which will be used for commercial production starting late next year.

Intel, Numonyx create breakthrough in phase-change memory

Intel Corp. and Numonyx B.V. announced a breakthrough in the development of phase-change memory today that has the potential to allow developers to stack multiple layers of chips atop each other, thereby greatly increasing the density of the nonvolatile memory medium. Greg Atwood, a senior technology fellow at Numonyx, said the breakthrough in stackable PCM, which is being called PCM-stackable (PCMS), has the potential to create products that can replace DRAM, NOR and NAND flash memory because it will have better bandwidth, greater density and a cost per gigabyte of capacity comparable with today's solid state disk (SSD) drive products. "We believe it enables the possibility of combining the functionality and performance of phase-change memory with more NAND-like cost structure," Atwood said. "And, it's of particular interest given the challenges the existing non-volatile memory technologies are facing over the next decade as well as the continued expansion of [PCM] usage." The two companies have been working on development of PCM products since 2000, and a stackable PCM product since 2002. Al Fazio, an Intel fellow and director of memory technology development, said it's not unusual for a new memory type to take as many as 10 years to develop. Calling the discovery a "milestone" in phase-change memory (PCM) development, the researchers said they have so far only been able to build a single-layer, 64Mbit chip with the potential to be stacked with other 64Mbit chips.

Atwood said that because the stacking breakthrough builds on top of PCM, a technology already in production, "it's a leading candidate amongst the various stackable memory concepts, most of which have no basis in a proven technology." Other non-volatile memories in development include graphite memory , and race track memory . Atwood added that Intel and Numonyx have no current time line for bringing PCMS products to market. Current NAND flash memory lithography technology resides at the 32-nanometer level. Phase-change memory is made up of a glass-like material called chalcogenide that can be can be switched between a crystalline and random state using very low-voltage electricity. Future roadmaps scale NAND flash to 20 nanometers, but physical limitations present a barrier to creating anything more dense than that. The structure of a typical non-volatile memory cell includes a storage element combined with a selector element. PCM, however, currently has the ability to scale to 5 nanometers in size, and the potential of even greater densities, Fazio said.

The function of the storage element is nonvolatile storage of data and the purpose of the selector element is to connect storage elements into a cross-point array of cells. Unlike NAND flash memory, which requires a entire block of memory cells to be rewritten each time new data is stored on a device like a SSD drive, PCM allows for single bits to be changed, greatly increasing the efficiency and performance of a device. "It has features of a low-latency memory and high bandwidth so we can combine many of the good attributes ... of NAND flash, DRAM and NOR flash," Fazio said. The connection allows for the selection of a single storage element inside of a large array of cells - a billion or more. The breakthrough in stacking PCMS came with the use of a thin film selector substance that is in the same class of materials as chalcogenide and is built above the silicon substrate. It has a low current in the off state and a high current in the on state," Atwood said. "Combining the OTS with the thin film storage material, a similar material used in phase-change memories today, enables a cell that can be stacked multiple layers high." Additionally, since the silicon substrate that isn't being used as a selector, as it is in today's PCM product, can now be used for building the support circuitry used that's required to decode, read and write to the cells. "So the combination of these two advantages results in a much smaller die size that's a lower potential cost structure for the memory," Atwood said. The companies are calling the thin film selector an Ovonic Threshold Switch (OTS), which acts like a resister between the stacked layers of PCM chips. "This switch demonstrates a diode-like behavior.

On Dec. 9, the two companies plan to present a paper on their discovery at the 2009 International Electron Devices Meeting, titled "A Stackable Cross Point Phase Change Memory."

Apple probes iPhone battery woes

Continued complaints by iPhone owners about fast-draining batteries have prompted Apple to ask some users to install power-logging software on their smartphones in an effort to diagnose the problem, according to messages on the company's support forum. "Some of you may already have been informed via e-mail [by Apple], but for those of you that haven't, I can assure you that Apple is trying to get to the bottom of this problem," said a user identified as "mikefradette" Friday on a support thread dedicated to poor battery performance. "Let's just say they have selected a beta group to help solve this issue." Others reported that technical support representatives had asked them to install Apple software that logs application usage and power consumption. I'd bet that Apple missed some key interactions between the iPhone's software and the processor in the last update that causes it to over-utilize the CPU, especially since [the complaints] came after the software update." Vronko was referring to the iPhone 3.1 update that Apple shipped two weeks ago. Apple technical support has also used an 11-item questionnaire in its discussions with users in an attempt to figure out the cause of rapid battery drain, including questions are about Wi-Fi, Bluetooth and e-mail use. "There's still no smoking gun," said Aaron Vronko, the CEO of Michigan-based Rapid Repair, an iPhone repair shop. "But the processor in the iPhone 3GS can use 50% more power in some situations than its predecessor. Most of the users grousing on the Apple support forum who identified their iPhone's model said they were using the 3GS, although some said they had seen battery life drop off on their iPhone 3G smartphones as well.

The clamor grew even louder after users installed iPhone 3.1, and shows no sign of abating. In fact, complaints about battery consumption started in June, when "http://www.computerworld.com/s/article/9135181/iPhone_users_harangue_Apple_over_battery_life?">Apple rolled out the iPhone 3.0 software. One thread on the topic, which debuted Sept. 10, has more than 570 individual posts, and has been read by over 40,000 people, an extremely high number for Apple's forum. "I'm glad this is an actual problem. I have to charge the iPhone in the middle of the day to be able to have enough battery to get home," added "help with iPhone." "Same problem here," reported "cathjock12345" on the same thread Monday. "The battery was completely drained after about 1 hour of Internet use, 10 text messages, and 2 quick (5 minute-ish) phone calls over the course of 5 hours. I thought I was just going crazy," said "iPhil" Monday afternoon on that well-trafficked thread. "After [iPhone] 3.1, battery sometimes doesn't even last an entire day with no additional talk than I had using 3.0." "The day after I installed the 3.1 firmware, everything changed.

Unacceptable." "I think this is exactly the kind of thing you'd see from an unexpected software interaction with the processor," argued Vronko today. But Apple's doing the right thing by asking iPhone owners how they're using their smartphones, and requesting that some install logging software. "Some of these [people] are probably heavy application users, though they may think they're light users," said Vronko. "But [the logging software] is likely looking not just at the applications being used and the power consumption, but recording down to the last processing thread what's occurring." Vronko was optimistic that Apple would get to the root of the problem. "Diagnostics like that should make it pretty easy for them to narrow it down," he said.

Hacker leaks thousands of Hotmail passwords, says site

More than 10,000 usernames and passwords for Windows Live Hotmail accounts were leaked online late last week, according to a report by Neowin.net , which claimed that they were posted by an anonymous user on pastebin.com last Thursday. Neowin reported that it had seen part of the list. "Neowin has seen part of the list posted and can confirm the accounts are genuine and most appear to be based in Europe," said the site. "The list details over 10,000 accounts starting from A through to B, suggesting there could be additional lists." Hotmail usernames and passwords are often used for more than logging into Microsoft 's online e-mail service, however. The post has since been taken down. Many people log onto a wide range of Microsoft's online properties - including the trial version of the company's Web-based Office applications , the Connect beta test site and the Skydrive online storage service - with their Hotmail passwords.

Accounts with domains of @hotmail.com, @msn.com and @live.com were included in the list. It was unknown how the usernames and passwords were obtained, but Neowin speculated that they were the result of either a hack of Hotmail or a massive phishing attack that had tricked users into divulging their log-on information. Microsoft representatives in the U.S. were not immediately able to confirm Neowin's account, or answer questions, including how the usernames and passwords were acquired. Last year, a Tennessee college student was accused of breaking into former Alaska governor Sarah Palin's Yahoo Mail account in the run-up to the U.S. presidential election. The BBC , however, reported early Monday that Microsoft U.K. is aware of the report that account information had been available on the Web, and said it's "actively investigating the situation and will take appropriate steps as rapidly as possible." If Neowin's account is accurate, the Hotmail hack or phishing attack would be one of the largest suffered by a Web-based e-mail service.

Palin, the Republican vice presidential nominee at the time, lost control of her personal account when someone identified only as "rubico" reset her password after guessing answers to several security questions. Kernell's case is ongoing. David Kernell was charged with a single count of accessing a computer without authorization by a federal grand jury last October. Shortly after the Palin account hijack, Computerworld confirmed that the automated password-reset mechanisms used by Hotmail, Yahoo Mail and Google 's Gmail could be abused by anyone who knew an account's username and could answer a single security question.

Juniper's relationship with Packet Design

In our Oct. 26 WAN newsletter we discussed the fact that there were a number of rumors circulating about a dramatic move that Juniper would soon announce. We are going to use this newsletter to focus on one piece of the Juniper announcements – Juniper's establishment of a close relationship with Packet Design. On Oct. 29 Juniper used the New York stock exchange as a backdrop to make a series of announcements.

Juniper Networks: a brief history In the Oct. 26 newsletter we pointed out that the most common rumor we were hearing was that Juniper would acquire Riverbed. We stated, for example, that although Riverbed certainly does sell into service providers, it is primarily a fast moving enterprise-focused company. In that newsletter we stated that for a number of reasons we didn't believe that Juniper would acquire Riverbed. In contrast, Juniper's DNA is clearly in the service-provider market. As part of their announcement, however, Juniper also announced that it will offer a development platform referred to as Junos Space.

Part of the agreement that Juniper announced with Packet Design is the standard OEM relationship by which Juniper's direct sales and distribution partners will sell Packet Design's route analytics products. Packet Design's Route Analyzer product will be one of the first solutions that resides in Junos Space. That follows because Packet Design's route analytics product are targeted at some of the challenges that occur in large complex networks – both enterprise and service provider. Unlike the rumored acquisition of Riverbed, Juniper's recently announced relationship with Packet Design makes a lot of sense. For example, one of the functions of Packet Design's route analytics products is to enable IT professionals to accurately model network changes before implementing them.

In order to do this, a route analytics solution has to have an understanding of precisely how IP networks deliver application traffic. Another function of these products is to provide visibility, analysis and diagnosis of the issues that occur at the routing layer. This requires continuous, real-time monitoring as well as the creation and maintenance of a map of networkwide routes and of all the IP traffic flows that traverse these routes. We said that this relationship makes a lot of sense in part because networks are continually getting more complex, Packet Design's route analytics products help manage that complexity and Juniper definitely understands large complex networks. This in turn means that a route analytics solution must be able to record every change in the traffic paths as controlled and notified by IP routing protocols. The Juniper announcements are interesting in part because they show that in spite of appearances, that there is a lot of innovation happening in networking.

The panel is entitled "Breakthrough Network Technologies". If you are going to be at the conference, try to attend the panel as it should be very insightful. To reinforce that concept, Packet Design will be on one of Jim's panels at the forthcoming Interop conference in New York.